Q: My neighbor installed a tree in the backyard that is blocking my view of the lake behind our homes. I recently learned that the association approved the installation but never asked for my sign off. This impacts the value of my property and should be removed based on my objection. How can I get justice? J.J., Marco Island
A: There is no default guarantee to a view in Florida unless your specific governing documents provide for such a guarantee. If your documents do not guarantee an unmitigated view of the lake, then your consent or objection would not be required by the association and would not dictate how the association should respond. In fact, relying on the subjective decision of a neighbor may also mean that the association’s decision itself would be arbitrary.
Even were you to convince the board it made a mistake, the fact is that the owner has already installed the tree and took that action in reliance on the approval of the association. If this is true, then it could be inequitable to now require the owner to undo the tree planting. The most significant questions are whether the governing documents prohibit trees in the rear of the yard, or whether the documents prohibit this particular type of tree. You would also want to know whether the association or its architectural committee followed the notice requirements for meetings to approve such a request as the decision may have been made without proper notice – even if it could have approved the tree over your objection.
Q: Our community suffers from a severe case of apathy when it comes to how our homeowners’ association (HOA) is run. Two of our three board members have resigned, and the remaining board member has not held a meeting in some time nor has tried to fill those seats. What can we do to try to remedy this situation? G.I., Naples
A: Upon concurrence of at least ten percent of members, members can call a special meeting by providing notice of the agenda, time, and place of the meeting per Florida Statutes 720.306(3). All such meetings require at least 14 days’ notice to members. Members also have the option of removing some or all board members who are failing to perform their duties, Florida Statutes 720.303(10). If an HOA’s board fails to fill vacant board seats sufficient to constitute a quorum, any member can petition the circuit court of the county in which the association is located for appointment of a receiver to take over management of the association according to Florida Statutes 720.3053. The petitioning member must first provide written notice to every other member of the HOA. If sufficient vacancies are not filled within 30 days of the notice, the petition can proceed, and the court can appoint a receiver, who has all powers of the board until the association fills the board vacancies. This is an expensive remedy and should be avoided at all costs. For condominium associations, please see Florida Statutes 718.1124.
Q: My condominium board just introduced plans to renovate the clubhouse. The plans include new paint colors in some rooms, installation of wallpaper in others, and furniture changes. I think a vote of the members is necessary before the board can begin the renovation. Am I correct? J.F., Naples
A: You are most likely correct. I say most likely not to sound like a lawyer and hedge my response, but because there may be a material alteration provision in your Declaration of Condominium that would allow the board to take these steps if it is in line with the provisions of the material alteration provision. We should first determine whether the proposed changes are material alterations. Material alteration is generally defined as a palpable or perceptive change in the use, function, or appearance of the common elements or association property. Section 718.113, Florida Statutes, states that at least 75 percent of the total voting interests must approve a material alteration unless the condominium documents provide for a different threshold. Most condominium documents do provide a different threshold. Your condominium documents likely provide a lower threshold for approval of material alterations. Some condominium documents tie in a material alteration vote with the expense proposed or a percentage of the association’s budget. For example, a provision may only require a material alteration vote if the proposed material alteration exceeds a certain monetary amount or a percentage of the association’s budget. Otherwise, the board may make the decision to implement the material alteration without a membership vote. I recommend reviewing your condominium documents to determine whether a different threshold is stated. If so, that threshold applies. If there is no different threshold, then Section 718.113, Florida Statutes apply. I also recommend that the board consult with its legal counsel on this matter.
John Trebilcock, Esq., is a partner of the law firm Goede, DeBoest & Cross. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com.
Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables, Boca Raton and Pensacola, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
This article originally appeared on Naples Daily News: Florida HOA Q&A: My neighbor installed a tree blocking my view. How can I get justice?
Reporting by Attorney John Trebilcock, partner / Naples Daily News
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